Kenneth Wallace v Amaca Pty Limited [2007] NSWDDT 4

Dust Diseases Tribunal of New South Wales

CITATION : Kenneth Wallace v Amaca Pty Limited [2007] NSWDDT 4

PARTIES : Kenneth Wallace Amaca Pty Limited

MATTER NUMBER(S) : 6240 of 2006

JUDGMENT OF: Kearns J

Dust Diseases Tribunal :- mesothelioma

assessment of damages for general damages CATCHWORDS: out-of-pocket expenses gratuitous care and loss of capacity to provide gratuitous domestic services

quantum

LEGISLATION CITED: Civil Liability Act 2002

Sullivan v Gordon (1999) 47 NSWLR 319; CASES CITED: Griffiths v Kerkemeyer (1977) 139 CLR 161; Werner v Krahe (2002) NSWCA 168

EX TEMPORE JUDGMENT DATE : 11 January 2007

Mr J Sharpe instructed by Turner Freeman appeared for the plaintiff LEGAL REPRESENTATIVES: Mr J Sheller instructed by DLA Phillips Fox appeared for the defendant

JUDGMENT: 7 Dust Diseases Tribunal of New South Wales Matter No 6240 of 2006 Kenneth Wallace v Amaca Pty Limited (Formerly James Hardie & Coy Pty Limited) 11 January 2007 JUDGMENT KEARNS J 1. When I adjourned this matter shortly after 1pm today I indicated that I would hope to deliver judgment at 10am tomorrow. I received a call during the course of the afternoon to inform me that the plaintiff's family had been called to his bedside and accordingly I have done my best to get the judgment in order for this hour, 4pm today. If, during the course of delivering these reasons, I make any error of fact or law I would ask that the parties draw that to my attention so that I may make any necessary corrections and amendments. Likewise, if I omit anything of relevance or significance I would ask the parties to draw that to my attention so that I may make any necessary corrections or amendments. 2. Counsel conducted this case with an efficiency confined to the issues, for which I am grateful. 3. The only issue is quantum. Mr Wallace, the plaintiff, contracted mesothelioma as a result of exposure to asbestos product of the defendant. GENERAL DAMAGES 4. The evidence is essentially non-controversial. The plaintiff was born on 18 May 1930. His life expectancy, on the life tables, but for his injury, is about ten years. There is family history that might suggest his life expectancy could be longer. There is also family history the other way. His life expectancy, because of his injury, is a matter of days and that even may be optimistic. The plaintiff worked in various occupations until retiring in 1995. He spent his retirement golfing, fishing and gardening. He enjoyed these activities and continued with them until Christmas 2005 when he started having trouble breathing. He deposed to the fact that he always used to be active. He was a championship golfer, he loved his golf. He owned a boat and went fishing regularly. He walked and rode a push bike, looked after the garden and mowed the lawns. He helped others in the retirement village mowing their lawns and doing odd jobs. 5. He noticed shortness of breath on the golf course and gave golf away. He put the shortness of breath down to old age. Over the next few months he puffed while walking, but kept walking. His breathlessness deteriorated. He got breathless in the shower and needed to rest after taking a shower. The plaintiff first mentioned his breathlessness to Dr Orgias in July 2006. He used to attend that doctor every couple of years for an echocardiogram. July 2006 was such a visit. Dr Orgias suggested an x-ray. He had that on 11 July 2006. There was the suggestion of a neoplasm. Dr Orgias put the plaintiff into Gosford hospital. He had one and a half litres of fluid removed from his lung. Following release from hospital he saw the specialist, Dr Cala. He was then referred to Professor McCaughan. Professor McCaughan arranged for him to be admitted to Prince of Wales Hospital on 7 August 2006 and he operated. Fluid was removed from his lung. Biopsy was undertaken and so was a talc pleurodesis. The plaintiff was in hospital for four days and his pain was controlled by morphine and Panadol. When he came home from hospital he deposes to the fact that "I did not feel real good". 6. The plaintiff received the result of his biopsy ten days after it was done. He then learned that he had "the worst cancer". Dr Cala discussed chemotherapy with him but as he understood the side effects of that could be worse than the end result he decided not to proceed with it. Following his surgery the plaintiff was in pain. He had sharp pain in the left side rib area. He was prescribed Tramal as well as Panadol. The plaintiff went back to see Dr Orgias in September 2006 as his breathlessness was not getting any better. An x-ray of 9 September 2006 showed there was further fluid on his lung. Dr Orgias arranged for this fluid to be drained but it could not be done as it had congealed. 7. The plaintiff deposed on 16 November 2006 to his getting worse. His breathing was very bad. He got puffed if he did anything. He was short of breath when talking or swallowing. He could not do anything physical. He had to sit to dress and towel himself. He was unsteady on his feet and had fallen a few times. He was tired and drowsy and not sleeping well. He would lie in bed at night for hours unable to sleep. He worried that he would stop breathing. He was tired all day. He had little energy and felt low. He was frustrated and depressed as a result of his inability to pursue the activities he used to undertake. 8. He also deposed on 1 November 2006 to not being able to look after the garden or mow the lawn since July 2006. He says he used to spend two hours per day in the garden. I am prepared to accept that and do, as I accept all the plaintiff's evidence that I have thus far recited. He also says it took him about two hours a week to mow the lawns. I think he is probably mistaken about that. The amount of lawn to be mown was not such that it would be likely to take two hours. Further, his son who gave evidence thought that to his observations it took about an hour. The plaintiff also deposed on 16 November 2006 to the fact that he could still look after himself but could not do anything around the house. When he went shopping with his wife he just sat in the car or in the shopping centre. 9. In paragraph 62 of his affidavit exhibit PX1 he stated as follows. . . . my wife now looks after the garden . . . Betty [that is the plaintiff's wife] does everything around the house. She spends six hours a week cleaning, three hours a week washing and ironing, three hours a week shopping, one hour a day making me fresh juice and about 1.5 hours a day cooking special meals. 10. In opening I was told this was incorrect and evidence would show that it was incorrect. Evidence was given by the plaintiff's son and by his daughter-in-law, but this evidence deposed to by the plaintiff was not specifically addressed by them. 11. Since the plaintiff swore his affidavit on 16 November 2006 his condition has deteriorated. His daughter-in-law gave evidence that on Christmas Day palliative care had attended and also nursing care had been arranged some time before then. He has been admitted to hospital. Lack of sleep is a significant problem. He cannot lie down and his upper body is almost upright in bed. He gets some occasional pain in the rib area of a sharp nature. By the time of his expected death the plaintiff will have suffered symptoms of his illness for about 13 months. It is really in the last six months that his symptoms have been of more significance. He is 76 years of age. He would be 77 in May of this year. 12. Doing the best I can I make an allowance for general damages for $170,000. INTEREST ON GENERAL DAMAGES 13. Because of the plaintiff's life expectancy it is appropriate to allow interest on the whole of the general damages for the whole of the past. Reflecting the fact that the damage he has suffered has accumulated over the whole of the past the 4 per cent interest rate should be reduced to 2 per cent. 14. I might interpose here and note that during the course of these reasons some figures I give will be definitive, others will require calculation and I would ask that the parties give me those calculations. 15. As the calculation of interest is necessarily a broad brush one, I allow interest for a period of 12 months on $170,000 at 2 per cent. That is a matter that the parties can calculate. OUT-OF-POCKET EXPENSES 16. The plaintiff claims: (a) food, 1.7.06 to 31.12.06 $200 per week for 26 weeks $5,200.00 (b) juicer $200.00 (c) herbal $700.00 17. This claim is said to be supported by paragraph 62 of the plaintiff's affidavit. I do not find support in that paragraph for this claim. The plaintiff gave evidence that organic foods and juices were costing about $200 per week. No documentary evidence supporting this spending was provided. Further, there was no evidence of the need for it or of the reasonableness of the expense, nor was there any evidence as to whether this was additional to or in substitution of his diet otherwise and if any cost might therefore need to be deducted accordingly. I disallow the claim for out of pocket expenses. GRIFFITHS v KERKEMEYER 18. I do not set out any detail for the first two periods as they are agreed and they are: (a) 1 July 2006 to 7 August 2006 $513.84; (b) 7 August 2006 to 10 August 2006 $342.56, I allow both those figures; (c) 10 August 2006 to 17 August 2006 The plaintiff claims 24 hours per day for seven days at $21.41 per hour. There will be an allowance in this period but Mr Sheller points out that this claim has not been particularised and submits that in any event there is no evidence to support it. I accept that submission; (d) 10 August 2006 to 31 October 2006 Apart from the first week just mentioned there is little difference between the parties' positions. The plaintiff claims 16.5 hours per week. The defendant accepts 15 hours per week. I allow 16.5 hours per week for the whole of that period; (e) from 1 November 2006 the plaintiff claims 16.5 hours per week for care as before plus eight hours per day for what was called passive care. The passive care is said to be supported by paragraph 60 of the plaintiff's affidavit. The only thing in that affidavit that I could discern going to this point is that the plaintiff says that he worries he will stop breathing. No evidence was before me to suggest that that worry translates to a need for somebody to sit with the plaintiff for eight hours a day, nor was there any medical evidence to support that need. Neither the plaintiff's affidavit nor his particulars otherwise suggest this need from 1 November 2006. Accordingly from 1 November 2006 I allow 16.5 hours per week as before. I allow that up until 10 December 2006; (f) from 10 December 2006 the defendant concedes an allowance for needs of 40 hours per week and I think that is a sensible and reasonable concession and I allow that to 17 December 2006; (g) 17 December 2006 to 31 December 2006 Palliative care had been provided for the plaintiff on Christmas day. Also before then he had had the need for nursing care from time to time. The plaintiff being in that position of requiring nursing care and palliative care, I think it is now reasonable to allow the passive care that had been earlier claimed and not allowed by me. There is no precision in the evidence about when the nursing care commenced, but assessment of damages in these matters cannot be done with precision and it is a matter of impression. I think it is reasonable in the circumstances to allow the passive care of eight hours a day in addition to the 16.5 hours per week for the period from 17 December 2006 until 31 December 2006. INTEREST ON GRIFFITHS v KERKEMEYER I would allow interest on the Griffiths v Kerkemeyer figure over the period from the commencement of its claim at half the relevant interest rate which I understand would come in at 4.5 per cent. SULLIVAN v GORDON OR CIVIL LIABILITY ACT S 15B 19. S 15B(2) relevantly provides: Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants but only if the Court is satisfied that (a) . . . (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity. 20. Subsection (c) provides for a threshold. The question here is what gratuitous domestic services the plaintiff provided to his wife. There can be no doubt that by reason of his illness the plaintiff has lost the ability to provide or undertake services but the critical question here will be whether those services were provided to his wife. The services consist of driving, gardening, shopping, mowing, vacuuming, heavier type household chores, washing windows, hanging out washing, making beds, handyman chores, looking after finances. 21. One can readily understand some of these services being services provided to his wife, for example driving. The plaintiff's wife did not drive and I am prepared to accept that she did not drive for the reasons set out in subsection (b), that is, that she was not capable of doing it herself by reason of her age or physical incapacity and accordingly, to the extent that the plaintiff needed to drive his wife, that would be a service provided within the meaning of the section. But it seems to me some of the other matters fall into a different category. 22. I do not see why, for example, mowing is a service provided to his wife, let alone it being provided by reason of her physical incapacity. It is provided as much for his benefit as for anyone else's, and the same goes for many of the other items that I have mentioned. Some of the items I have mentioned could clearly be categorised as services provided to the plaintiff's wife but I am not satisfied that many others could. 23. One of the other problems with this claim is that the evidence on the issue was largely secondhand. It was evident that a lot of the evidence of Mrs Wallace, the plaintiff's daughter-in-law, was clearly of a secondhand nature as in response to a number of questions she gave evidence of her belief that certain things were done, for example she believed that the plaintiff took the wife shopping to Tuggerah and it is evident that she did not witness such things and indeed she specifically said that, as to a number of matters, she neither undertook them nor witnessed them being done. 24. No evidence was given by the plaintiff's wife. The evidence that no one was available to bring her to court today I do not find to be a satisfactory explanation for her inability to give evidence in the case. Evidence was also given that the plaintiff's daughter, Christine, had been providing a lot of the assistance but she was not called and again I do not find the explanation for her not being able to attend to give evidence to be a satisfactory explanation as to why she could not have given evidence in the case. Further, some of the items of work that the plaintiff undertook in themselves are not shown to be necessary or reasonable, at least to the full extent that they were done. For example, the mowing included mowing of strips of grass on both sides of the house where the plaintiff lived. The plaintiff lived in a house which was his or his and his wife's which was on a block that they rented. The mowing of the strips on both sides of that house was not of strips of grass that were on the property that was rented by the plaintiff or his wife. 25. Further, the house was a transportable one capable of being moved if need be. One would expect therefore that it was not a large house and its description of being one of two bedrooms, one bathroom, kitchen, dining area and separate lounge would suggest that this was so. One would expect that household chores for such a house would not be overly time-consuming. I mentioned earlier that assessment of matters of this nature cannot be one of precision but rather one of impression and so much was stated by Foster J in Werner v Krahe (2002) NSWCA 168. In the absence of more detailed evidence from the plaintiff and in the absence of evidence from the plaintiff's wife or from Christine or from anybody else who was substantially undertaking the services that were undertaken, I am not satisfied that, when the services are dissected, those of the kind that fall within s 15B were provided to the extent to satisfy the threshold in s 15B(2)(c) and accordingly I do not allow the SULLIVAN v GORDON or s 15B claim. 26. There will be a verdict and judgment in the sum of $185,386.98. The defendant will pay the plaintiff's costs. **********